Justice reform, the draft bill is being examined by the pre-council of ministers

Justice reform, the draft bill is being examined by the pre-council of ministers

The draft bill relating to the first justice reform package is being examined by the pre-council of ministers.

A s is expectedtreaty on the publication of wiretaps.

Only those whose content is “reproduced by the judge in the justification of a provision or used during the hearing”. More rigor is also required from prosecutors and judges: they will have to remove references to third parties unrelated to the investigations from the draft documents and their provisions. Even in the request of the prosecutor and in the order of the judge for precautionary measures, the personal data of subjects other than the parties must not be indicated.

“Reduction of the scope of application” of the crime of trafficking in illicit influence, which is “limited to particularly serious conduct”. Increase, however, also the minimum sentence for this crime. The "non-punishment" will be triggered if the person who committed the crime cooperates with justice.

The prosecutor will no longer be able to appeal against the acquittal sentences “relating to crimes of moderate gravity”. It is explained that the intervention takes into account the limits of the accused's power of appeal introduced by the Cartabia reform. Acquittal decisions for the most serious crimes remain appealable by the public prosecutor, including all those against the person that cause particular social alarm, which include the so-called code red crimes, as explained in the report attached to the bill.

The crime of abuse of office is repealed due to an "anomaly" that persists even after the many changes that have occurred: the "imbalance" between the entries in the register of suspects and the actual convictions. We can read it in the report that accompanies the draft of the bill on justice. The number of entries in the register of suspects remains “still high: 4.745 in 2021 and 3.938 in 2022; of these proceedings, 4.121 were closed in 2021 and 3.536 in 2022.” However, there were only 18 convictions at first instance in 2021. The government does not rule out sanctioning conduct in the future "pursuant to any indications of a Euro-unitary nature".

The notice of warranty changes: it must contain a "summary description of the fact", not scheduled today. And the notification – we read again in the report – must take place "in ways that protect the suspect from any improper consequences". "Despite being intended to protect the person subjected to investigations, the information of guarantee has often turned into the exposure of the suspect to media notoriety, with stigmatizing effects".

Hence the intervention also extended to the methods of delivery: in reiterating the general rule according to which the delivery of the document even when carried out to a person other than the recipient must be carried out in such a way as to guarantee the confidentiality of the latter, it was the possibility of using the judicial police is limited only to emergency situations that do not allow the use of ordinary methods.

As regards precautionary custody, he will be a collegiate judge, no longer a single magistrate to decide , during the investigations, the application of precautionary custody in prison. A novelty that will not apply if the measure is adopted as part of the arrest or detention validation procedures. They also fall within the jurisdiction of the collegiate judge "the sentences of aggravation which entail the application of the measure whose adoption is ordinarily collegial", and "the provisional application of custodial security measures". The innovation, which takes up a solution tested in the legislation for the waste emergency in Campania, will not come into force immediately due to the staff shortages of the judiciary, but in 2 years. In the meantime, we will proceed with an increase in the judiciary's staff with 250 new "robes" to be allocated to first degree judging functions.

The judge will have to hear the suspect before deciding whether to subject him to a precautionary measure: he comes introduced the principle of "preventive cross-examination" in all cases in which, during the preliminary investigations, it is not necessary for the precautionary measure to be adopted "surprise". The purpose of the rule is "avoid the disruptive effect on people's lives of a precautionary intervention adopted without the possibility of preventive defense" and put the judge in a position to be able to have an interlocution (and also direct contact) with the suspect before adopting the measure .

However, preventive cross-examination will be excluded when there is a risk of contamination of the evidence or the suspect's escape, in cases of urgency or in the event of “serious crimes committed with the use of weapons or other means of personal violence”. When proceeding with the preventive interrogation, the judge will have to deposit all the documents sent by the public prosecutor with the request to apply the measure and the suspect will be able to view them and extract a copy. The measure adopted will be void if the preventive interrogation is not carried out or in the absence of a specific evaluation of the elements exposed by the suspect.

Tighter deadlines for completing the competition for access to the judiciary. The ranking must be defined within 8 months of the last written test (today 9 are requested) and within 10 (currently 12) the competition winners will have to begin their internship in the judicial offices. In order for the new deadline to be respected, organizational remedies have been provided for. In particular, it is expected that, in the event that 2.000 candidates have submitted their papers (as in the competitions of recent years), the examining commission will be integrated from 29 to 33 members in addition to the president and will be organized into 9 colleges. The objective is that the writings of at least 600 candidates are examined monthly and, subsequently, 100 candidates are questioned in the oral tests at the same frequency. In case of difficulties, the Commission may be integrated by alternate members.

With an authentic interpretation rule, the draft bill on justice avoids the risk of sentences pronounced in proceedings for very serious crimes of organized crime and terrorism in which lay judges over 65 years of age participated being declared null and void. The law sets 65 years as the maximum age for lay judges but this requirement, the draft clarifies, "is to be understood as relevant only with reference to the moment in which the lay judge is called to serve".

“It does not have important, systematic ambitions, but it contains changes that, in my opinion, do not go in the right direction”. This is how the president of the Anm responds to ANSA Joseph Santalucia, that he sees among "most important critical issues" "the elimination of abuse of office, the collegiate judge for precautionary custody in prison and the limitation of the prosecutor's powers to appeal against acquittal sentences". While the “limitation on the publication of certain conversations creates a further tension between the right to information and the right of the accused".

“The elimination of abuse of office creates a protection gap that I cannot explain. The fact that there are few trials does not mean that there are no crimes - eitherSantaluci observesto -. Regarding the Collegiate Judge, I see an organizational unsustainability especially in small offices, despite the increase in staff, if and when there will be in terms of real forces in the field. I then see a unilateral limitation of the power of the public party not balanced, as the Constitutional Court has said is necessary, by a concurrent limitation of the power of appeal of the private parties. The alteration of the balance is significant for all acquittal sentences of some crimes".

Santalucia recalls that the assembly of ANM members has committed the council to request an urgent meeting with Minister Nordio on the reform: "We will do it", assures the leader of the magistrates.

Il National Council of the Order of Journalists expresses “concern regarding the draft of the Justice Bill brought to the examination of the pre-Council of Ministers. The limits that they want to introduce to the knowledge of the interceptions carried out during preliminary investigations risk constituting an obstacle to the citizens' right to be informed about events of significant public interest".

“Currently the documents known to the suspects (therefore after the execution of a precautionary custody order or after the closure of the investigations) are no longer secret - underscore -: the risk is to silence almost everything, with the exception of wiretaps "reproduced by the judge in the justification of a provision or used during the hearing".

“The Cnog, while sharing the legitimate need to protect subjects unrelated to the investigations whose names appear in the interceptions and to find the right balance between freedom of the press and respect for the dignity of the person – the note continues -, believes that the right to information must in any case be guaranteed, with particular reference to facts of public interest such as all criminal investigations which make use of wiretaps, which are granted only in the cases of the most serious crimes. Right to information enshrined in numerous rulings of the European Court of Human Rights which also considers the publication of documents covered by secrecy on important investigations involving public figures to be lawful".